MR. JUSTICE STEWART delivered the opinion of the Court.
A Cincinnati, Ohio, ordinance makes it a criminal offense for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . ."
The appellants were convicted of violating the ordinance, and the convictions were ultimately affirmed by a closely divided vote in the Supreme Court of Ohio, upholding the constitutional validity of the ordinance. 21 Ohio St.2d 66, 255 N.E.2d 247. An appeal from that judgment was brought here under 28 U. S. C. § 1257 (2),
In rejecting this claim and affirming the convictions the Ohio Supreme Court did not give the ordinance any construction at variance with the apparent plain import of its language. The court simply stated:
Beyond this, the only construction put upon the ordinance by the state court was its unexplained conclusion that "the standard of conduct which it specifies is not dependent upon each complainant's sensitivity." Ibid. But the court did not indicate upon whose sensitivity a violation does depend—the sensitivity of the judge or jury, the sensitivity of the arresting officer, or the sensitivity of a hypothetical reasonable man.
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, "men of common intelligence must necessarily guess at its meaning." Connally v. General Construction Co., 269 U.S. 385, 391.
It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. Gregory v. Chicago, 394 U.S. 111, 118, 124-125 (BLACK, J., concurring). It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.
The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.
The judgment is reversed.
MR. JUSTICE BLACK.
First. I agree with the majority that this case is properly before us on appeal from the Supreme Court of Ohio.
Second. This Court has long held that laws so vague that a person of common understanding cannot know what is forbidden are unconstitutional on their face. Lanzetta v. New Jersey, 306 U.S. 451 (1939), United States v. Cohen Grocery Co., 255 U.S. 81 (1921). Likewise, laws which broadly forbid conduct or activities which are protected by the Federal Constitution, such as, for instance, the discussion of political matters, are void on their face. Thornhill v. Alabama, 310 U.S. 88
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.
The claim in this case, in part, is that the Cincinnati ordinance is so vague that it may not constitutionally
It is possible that a whole range of other acts, defined with unconstitutional imprecision, is forbidden by the ordinance. But as a general rule, when a criminal charge is based on conduct constitutionally subject to proscription and clearly forbidden by a statute, it is no defense that the law would be unconstitutionally vague if applied to other behavior. Such a statute is not vague on its face. It may be vague as applied in some circumstances, but ruling on such a challenge obviously requires knowledge of the conduct with which a defendant is charged.
In Williams v. United States, 341 U.S. 97 (1951), a police officer was charged under federal statutes with extracting confessions by force and thus, under color of law, depriving the prisoner there involved of rights, privileges, and immunities secured or protected by the Constitution and laws of the United States, contrary to 18 U. S. C. § 242. The defendant there urged that the standard—rights, privileges, and immunities secured by the Constitution—was impermissibly vague and, more particularly, that the Court was often so closely divided on illegal-confession issues that no defendant could be expected to know when he was violating the law. The Court's response was that, while application of the statute
So too in United States v. National Dairy Corp., 372 U.S. 29 (1963), where we considered a statute forbidding sales of goods at "unreasonably" low prices to injure or eliminate a competitor, 15 U. S. C. § 13a, we thought the statute gave a seller adequate notice that sales below cost were illegal. The statute was therefore not facially vague, although it might be difficult to tell whether certain other kinds of conduct fell within this language. We said: "In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged." Id., at 33. See also United States v. Harriss, 347 U.S. 612 (1954). This approach is consistent with the host of cases holding that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21 (1960), and cases there cited.
Our cases, however, including National Dairy, recognize a different approach where the statute at issue purports to regulate or proscribe rights of speech or press protected by the First Amendment. See United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Kunz v. New York, 340 U.S. 290 (1951). Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is
Even accepting the overbreadth doctrine with respect to statutes clearly reaching speech, the Cincinnati ordinance does not purport to bar or regulate speech as such. It prohibits persons from assembling and "conduct[ing]" themselves in a manner annoying to other persons. Even if the assembled defendants in this case were demonstrating and picketing, we have long recognized that picketing is not solely a communicative endeavor and has aspects which the State is entitled to regulate even though there is incidental impact on speech. In Cox v. Louisiana, 379 U.S. 559 (1965), the Court held valid on its face a statute forbidding picketing and parading near a courthouse. This was deemed a valid regulation of conduct rather than pure speech. The conduct reached by the statute was "subject to regulation even though [it was] intertwined with expression and association." Id., at 563. The Court then went on to consider the statute as applied to the facts of record.
In the case before us, I would deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was
I would therefore affirm the judgment of the Ohio Supreme Court.
"(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."
"As it is written, the disorderly assembly ordinance could be used to incriminate nearly any group or individual. With little effort, one can imagine many . . . assemblages which, at various times, might annoy some persons in the city of Cleveland. Anyone could become an unwitting participant in a disorderly assembly, and suffer the penalty consequences. It has been left to the police and the courts to decide when and to what extent ordinance Section 13.1124 is applicable. Neither the police nor a citizen can hope to conduct himself in a lawful manner if an ordinance which is designed to regulate conduct does not lay down ascertainable rules and guidelines to govern its enforcement. This ordinance represents an unconstitutional exercise of the police power of the city of Cleveland, and is therefore void." Cleveland v. Anderson, 13 Ohio App.2d 83, 90, 234 N.E.2d 304, 309-310.
"Under the provisions of Sections 17-5-10 and 17-5-11, arrests and prosecutions, as in the present instance, would have been effective as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe, Patrick Henry, Thomas Jefferson, George Washington and others for loitering and congregating in front of Raleigh Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at any time during the summer of 1774 to the great annoyance of Governor Dunsmore and his colonial constables." City of Toledo v. Sims, 14 Ohio Op. 2d 66, 69, 169 N.E.2d 516, 520.